In the introduction blog, I discussed the issues that would be addressed in this blog as follows:
1. Under what circumstances should the Model Rules of Professional Conduct govern a lawyer's participation in blogs, given that such activities often have both advertising and non-advertising functions?
This question is indirectly answered in this entry.
Here, I argued that due the increased privacy issue of lawyer blogs (due to the ability of lawyers to advertise on facebook as well as other concerns), a Went for It rule of the ABA would not only be constitutional, but recommended.
I would argue that it is necessary, as this blog has addressed, to have rules that specifically address lawyers’ use of social media.Model rule 7.3 addresses the issue of in-person contact of lawyer. The comments specifically address the issue of ‘real-time electronic communication. Furthermore, Model Rule 7.1 addresses the lawyers’ use of false or misleading information. However, based on all of the concerns previously mentioned in this blog, the combination of these rules does not adequately address lawyers’ use of blogs to solicit services.
Therefore, a new rule should be implemented by the ABA, which states the following:
Any lawyer who intends to use a lawyer blog to solicit lawyer services shall report the web address to the state bar. The comments would then define what is meant by lawyer blog (any website ran, maintained, or written by a lawyer who is licensed under the state bar) and solicitation of services. In addition, the comments would address the fact that the lawyer must keep the state bar updated if the link changes or the lawyer moves its blog to another site.
I realize that there is concern that this new rule may create a substantial amount of duties for the state bar associations. However, as my research has shown me, the practice of law is moving towards the paperless age. It is best for the respective state bars to get a ‘handle’ on this problem now, before the practice of law diminishes to one that is not respected by the layperson.
The second question was phrased as follows:
2. Should the Commission draft a policy statement for the House of Delegates to consider or a white paper that sets out certain guidelines regarding lawyers’ use of blogs? Alternatively, or in addition, should the Commission propose amendments to Model Rules 7.2, 1.18, 8.4(f), 4.2, or 4.3, or the Comments to those Model Rules in order to explain when communications or other activities on blogs might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission propose?
In this entry. I made the statement that lawyer speech, when not involving advertising, deserves a heightened level of protection. Lawyer blogs are no exception. However, due to increased usage of blogs and other social media, lawyers need guidance on how to ensure they remain ethical when using these sites. Accordingly, it is necessary for the ABA to, at minimum, insert comments into some of the rules to tell lawyers how to behave.
Here is what I would add to each of the above rules:
Model rule 7.2: Nothing needs to be added, as this is the rule of attorney advertising which deserves a lower level of protection.
Model rule 1.18: Prospective Clients: A comment may need to be added which indicates that this rule also applies to contact between a lawyer and client on lawyer blogs, as well as in the comments of a blog.
Model rule 8.4(f): Misconduct : This rule has only minimally been discussed on this blog, but a comment may need to be added that addresses the issue of lawyers being friends on facebook with judges. This topic is outside the scope of lawyer blogging but relevant to the issue of lawyers’ use of facebook.
Model rule 4.2: Persons Represented by Counsel, and Model Rule 4.3: These rules should include a comment including the provision that the contact between a lawyer and non-client on a lawyer blog or other social media still constitutes communication.
Model rule 3.6: Trial Publicity: This rule should also include a comment stating that this publicity also applies to lawyer blogs, including comments in lawyer blogs.
Model Rule 1.6: Client confidences: This rule is one that requires a comment to discuss anonymous lawyer blogging.
In this blog post I discussed how anonymous lawyer bloggers are subject to the same regulations as public lawyer bloggers. A comment to rule 1.6 should indicate the following:
Anonymous blogs are still subject to these rules.
While this is a fairly simple statement, it is my belief, as previously discussed, that many lawyers believe they are escaping the regulation of the state bar by writing their blogs as anonymous lawyers. In the next ten years, the legal profession will continue to change, and I believe that blogging will become even more common than it already is. With anonymous speech, it is irrelevant whether the client’s confidences are actually being disclosed to the Internet; rather, I would frame the issue as one of professionalism. If clients know that lawyers blog anonymously, they have a fear of being ‘made fun of’ on their lawyers’ blog. Doesn’t this make an argument that it is important that these blogs are still regulated, due to the overarching concern for lawyer professionalism in the ABA Model Rules?
3. Can lawyers create online discussion boards without disclosing that the discussion boards serve a client development function? If lawyers leave comments on such discussion boards or on blogs, are those comments subject to the Model Rules of Professional Conduct? Should the Commission offer a policy statement or white paper that sets out certain guidelines regarding lawyers’ use of such sites? Alternatively, or in addition, should the Commission propose amendments to Model Rules 1.18 or 7.2 or the Comments to those Model Rules in order to explain when these activities might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission offer?
This question was answered above, with referring to the fact that comments on blogs should similarly be regulated.